Thoughts and News on Criminal Justice and Correctional Policy in California

Monday, October 22, 2012

CCC Endorsements 2012: YES on 34. NO on 35. YES on 36.

In two weeks, California voters will be offered the
opportunity to vote on three criminal justice initiatives: Prop 34, which would
replace the death penalty with life without parole; Prop 35, which would
increase penalties for sex trafficking, make evidentiary changes, and further
burden registration requirements for sex offenders; and Prop 36, which proposes
a small but significant revision to the Three Strikes Law. There has been much
talk about each of these individual propositions. In this short piece, I
examine them together and show how they represent two different strands of thinking
about criminal justice: New ideas of parsimony and effectiveness through Props
34 and 36, and old-school punitivism packaged as victims’ rights, via Prop 35.

Proposition 34 has received the most media attention of the
three, and with good reason. What is interesting about it is not only the
historical opportunity to do away with the death penalty, but also the new
justifications and realpolitik
backing up the campaign. Voters are encouraged to look beyond their ideological
and philosophical opinions about the death penalty, and instead consider the
way the death penalty is actually applied in California. The data, and the
Legislative Analyst’s Office fiscal report, paint a disturbing picture. Since
renewing executions in the 1970s, the state has executed merely 13 inmates.
During that same time, 84 death row inmates died of natural causes. The paucity
of executions stems from extensive (and expensive) litigation on behalf of the
inmates, which is financed by the state, and is increasingly focused on
chemical availability and injection techniques. The result is that the death penalty,
in reality, has become no more than life without parole, under special
conditions (housing 725 inmates in single, rather than double, cells, with
extensive security measures), accompanied by decades of incessant litigation
and health care expenses, with or without an execution at the end, the
elimination of which will save the state a hundred million dollars in the first
year alone according to the Legislative Analyst’s office analysis. Under these
circumstances, philosophical differences about the state’s right to kill, the
meaning of retribution, and the importance of closure for victims, become
irrelevant. Some might think that the right thing would be to fix the death
penalty, rather than eliminate it, but no proposition along the former lines is
realistically forthcoming, and therefore many former (and current) supporters
of the death penalty, including victims’ rights advocates, law enforcement
officials, and original proponents of the California death penalty statute,
have joined the Yes on 34 campaign.

Prop 36, which would reform the Three Strikes Law, is
similar to Prop 34 in that it transcends ideological differences in penal
politics to offer a practical, parsimonious fix, albeit a modest one in this
case. Currently, the Three Strikes Law inflicts a double sentence on habitual
offenders who commit a second violent or serious felony, and a
twenty-five-years-to-life sentence upon commission of a third felony, even if the
third felony is not violent or serious. The law also allows strikes to be imposed
simultaneously, implying that the rationale behind its punitive regime is not
deterrence, but rather incapacitation. Currently, California prisons house
approximately 32,000 second strikes and 9,000 third strikers; an estimated half
of the latter population is serving a twenty-five-years-to-life sentence for a
third strike that was neither serious non violent. Beyond the consistently
unfavorable media coverage of the injustices propagated on this population
(including harsh sentences for thefts of items that cost less than ten
dollars), Prop 36 raises serious fiscal issues. While third strikers are a
small population, they serve lengthy sentences, which make them by definition
expensive inmates. The state spends approximately 50,000 dollars per inmate per
annum, and much of this amount is due to health care costs, which apply mostly
to old and infirm inmates. The proposed reform to the law is fairly minor:
Second strikers’ sentences will remain the same, as will the ability to obtain
simultaneous strikes. The only reform would be eliminating the harsh sentence
for non-serious, non-violent third strikes, making those a double sentence
rather than twenty-five years to life.
Current non-violent third strikers would become eligible for
resentencing. The Legislative Analyst’s office estimates annual savings that
might exceed 100 million dollars.

As opposed to Props 34 and 36, Prop 35 is a classic example
of old-school punitive thinking masquerading as a victims’ rights proposition.
Marketed as supportive of sex trafficking victims to give it moral weight, the
actual text does little, if anything, to help victims. Moreover, the
proposition is a mixed bag of the sort of punitive propositions Californians
have experienced (and voted on) for years: An increase in the
already-considerable sentences of human traffickers, changes to the mens rea requirement for trafficking
minors, nebulous criminalization of sex work, and a host of bizarre and
unenforceable additions to the already-pervasive sex offender registration
scheme (sex offenders would presumably have to report their email addresses and
usernames, which cannot possibly be monitored or enforced in any way.) Beyond
lip service to the idea of training police to respond well to victims, the
proposition would not really improve the situation of victims of trafficking in
any predictable way, and its backers and endorsers are counting on the morality
hype to confuse voters into doing what seems morally right and vote yes. It
would be a costly mistake, along the lines of the 2009 Marsy’s Law and
countless other propositions of the same ilk.

The contrast between Props 34 and 36 on one hand and Prop 35
on the other is more than a juxtaposition of nonpunitive and punitive measures.
It is a juxtaposition of a new way of thinking about criminal justice in an era
of scarcity. Our paucity of resources requires a careful assessment of what
actually works in criminal justice reforms, rather than bombastic expenditures
on symbolic punitivism that do little to prevent crime or empower victims. It
is not crude or crass to discuss money in this context. Our willingness to
spend resources on the criminal justice resources is the clearest statement of
our priorities as a society. Voting yes on 34 and 36 is sending a loud and
clear message that the money spent on executions and unnecessarily lengthy
incarcerations is better spent on education, health care, road maintenance,
and—yes—improving police investigation.

This election offers you the opportunity to do away with old
partisan thinking and reject the tried-and-untrue method of extreme punishment
and ratcheted sentencing. Reverse the punitive pendulum and opt for justice
that works, not punitive proclamations that promise and do not deliver. Vote
yes on 34, no on 35, and yes on 36.

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About Us

We are faculty members and students at UC Hastings College of the Law, affiliated with the Hastings Institute for Criminal Justice. Our posts reflect our respective personal opinions and analyses of correctional and criminal justice policies.